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Constitutional ESRsin theD eveloping WorldP reliminary ReportDraft for Comment

Economicand Social Rightsin Developing Country Constitutions

Preliminary Report

on the TIESR DatasetDraft for Comment

January 26, 2011

Courtney JungUniversity of Toronto

([email protected])

Evan Rosevear

University of Toronto

([email protected])
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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ExecutiveSummaryThe TIESR Dataset measures the presence or absence of seventeen separate economicand social rights in 122 written constitutions in the developing world as well as their

constitutional status as justiciable or aspirational. This report identifies the most

important findings of the dataset, based on a preliminary analysis that includes relative

proportions, bivariate correlations, and cross-tabulations derived from the justiciable-aspirational-absent categorization as well as a regional disaggregation.

The report focuses on four principal aspects of the research:

The relative standing of individual economic and social rights; The regional treatment of economic and social rights;

Several findings and conclusions are drawn from this analysis:

The right to property is the most commonly enshrined (95.9%) and most commonlyjusticiable (59.0%) economic and social right.

The four most commonly enshrined social rights are education (87.7%), health (80.3%),social security (77.9%), and child protection (74.6%).

The four least common social rights are housing (40.2%), land (23.8%), food and water(24.6%), and development (9.1%). These four are particularly rare outside of Latin

America.

Among economic rights, the right to form or join a trade union is the most widelyenshrined (77.9%). The rights to social security by virtue of employment (59.0%), strike

(54.9%), and a fair wage (49.2%) are present in roughly half of all developing country

constitutions.

Economic and social rights are most present in Latin America and East- Central Europe,notably less so in Sub-Saharan Africa, and least present in Asia and the Arab States.

Most regions demonstrate a similar pattern with respect to the relative prevalence ofparticular rights and their status as justiciable or aspirational. Asian constitutions are

significantly less likely to include economic rights, especially the right to form or join a

trade union and to strike, than those of other regions.

Except for the right to form or join a trade union, the six economic rights are all less

(education, health, child protection, and social security). On the other hand, the right to

form or join a trade union is the second most commonly justiciable economic and social

right, followed by the right to education.

Approximately two- all of the economic and social rights they recognize as either aspirational or justiciable.

The remaining one-third include a mixture of justiciable and aspirational economic and

social rights. Therefore it seems reasonable to think of Justiciable, Aspirational, and

most prevalent in Latin America and the Aspirational model is most common in the Arab

States.


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Tableof Contents

1 The TIESR Dataset ..................................................................................................... 11.1 Case Selection and Characteristics ....................................................................... 21.2 Coding and Classification .................................................................................... 31.3 Regional Disaggregation and Comparability ....................................................... 5

2 The Frequency and Distribution of ESRs ................................................................... 82.1 The Right to Property ........................................................................................... 92.2 Economic Rights ................................................................................................ 10

2.2.1 The Right to a Fair Wage ............................................................................ 112.2.2 The Right to Form or Join a Trade Union ................................................... 122.2.3 The Right to Strike ...................................................................................... 132.2.4 The Right to Rest or Leisure ....................................................................... 142.2.5 The Right to Healthy Working Conditions ................................................. 142.2.6 The Right to Social Security Related to Employment ................................ 15

2.3 Social Rights ...................................................................................................... 162.3.1 The (General) Right to Social Security ....................................................... 162.3.2 The Right to Child Protection ..................................................................... 172.3.3 The Right to Health Care ............................................................................ 182.3.4

The Right to Access to Land ....................................................................... 19

2.3.5 The Right to Housing .................................................................................. 202.3.6 The Right to Food and Water ...................................................................... 202.3.7 The Right to Education ............................................................................... 212.3.8 The Right to Development. ......................................................................... 222.3.9 The Right to a Healthy Environment .......................................................... 222.3.10 Duty of the State to Protect the Environment ............................................. 23

2.4 ICESCR Status ................................................................................................... 243 Regional Treatment of Rights ................................................................................... 26

3.1 The Arab States .................................................................................................. 273.2 Asia ..................................................................................................................... 283.3 East-Central Europe ........................................................................................... 303.4 Latin America ..................................................................................................... 313.5 Sub-Saharan Africa ............................................................................................ 32


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4 ................................................................................. 345 Analysis: Justiciable, Aspirational, and Mixed Constitutional Models .................... 406 Conclusion ................................................................................................................ 437 Works Cited ............................................................................................................... 448 Appendices ................................................................................................................ 48

8.1 Composition of Regions ..................................................................................... 488.2 Bivariate Correlations ........................................................................................ 498.3 The Uniformity of Rights Regimes .................................................................... 508.4 Frequency of ESRs by Category ........................................................................ 51

8.4.1 Global .......................................................................................................... 518.4.2 Arab States .................................................................................................. 518.4.3 Asia ............................................................................................................. 528.4.4 Eastern and Central Europe ........................................................................ 528.4.5 Latin America .............................................................................................. 538.4.6 Sub-Saharan Africa ..................................................................................... 53


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Abbreviationsand AcronymsCPRO The right to child protection

D E V T The right to development

E C E Eastern and Central Europe

EDUC The right to education

ENVP Duty of the state to protect the environment

E Rs Economic Rights

FRWG; TRDU; STRK, LEIS; HWRK; and, SSEM

ESRs Economic and Social Rights

FOWA The right to food and water

FRWG The right to a fair wage

H E N V The right to a healthy environment

HLTH The right to healthcare

HOUS The right to housing

H W R K The right to healthy working conditionsICESCR International Covenanton Economic,Social and Cultural Rights

ICPCR International Covenanton Political and Civil Rights

L A M Latin America

LAND The right to access to land

LEIS The right to rest or leisure

NSRs Non-Standard Social Rights:

LAND; HOUS; FOWA; DEVT; HENV; and, ENVP

PROP The right to private property

SRs Social Rights

SSAF Sub-Saharan AfricaSSEC The (general) right to social security

SSEM The right to social security derived from employment

SSRs Standard Social Rights:

SSEC; CPRO; HLTH; and EDUC

STRK The right to strike

TIESR Toronto Initiative for Economic and Social Rights

TRDU

UDHR Universal Declaration ofHuman Rights

UNDP United Nations Development Program


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1 TheT I ESR Dataset1Economic and social rights (ESRs) guarantee rights to unionize, strike, and fair wages,

and they promise access to housing, healthcare, education, and social security. Along

with civil and political rights, they are enshrined in the Universal Declaration of Human

Rights,2 and they bind states signatory to the International Covenant on Economic,

Social, and Cultural Rights.3 In addition, many new democracies have included

economic and social rights in their constitutions, committing their governments, at least

rhetorically, to the progressive realization of minimum standards of social welfare.

The Toronto Initiative for Economic and Social Rights (TIESR) Dataset contains

quantitative information on the constitutional status of economic and social rights in

developing countries. This dataset measures the presence or absence of seventeen

separate economic and social rights in 122 constitutions as well as their constitutional

From this coding, a threefold measure of rights is created for each ofthe variablesabsent, aspirational, or justiciable. Data on the constitutional commitment

to a free market, expropriation, and ratification of the ICESCR were also captured.4

At least some economic and social rights now appear in more than 95% of developing

country constitutions, and a majority of constitutions include a wide range of such rights.

In more than one third of constitutions, those ESRs that are included in the constitution

are accorded co-equal constitutional status with civil and political rights. Another third

identify most economic and social rights as aspirational principles. The remaining third

include a mix of aspirational and justiciable rights. Our data also reveal which rights are

most, and least, often included in developing country constitutions.

Whether particular rights are practically justiciable enforceable through the domestic

court system and subject to legal remedy depends in part on factors beyond the

1The authors gratefully acknowledge the advice, assistance, and feedback offered by the members of the

TIESR Advisory Board, and by our partners: The Comparative Constitutions Project; The Center for

Economic and Social Rights; and The CIRI Human Rights Data Project. This research was funded by a

grant from the Social Sciences and Humanities Research Council of Canada.2United Nations, The Universal Declaration of Human Rights(United Nations, December 10, 1948),

http://www.un.org/Overview/rights.html.3

International Covenanton Economic,Social and Cultural Rights, 1966,http://www.unhchr.ch/html/menu3/b/a_cescr.htm.4The TIESR dataset was independently coded by two researchers; disagreements between the coders were

reconciled by a separate panel. We nevertheless request that users help to improve the data's reliability by

reporting mistakes and/or differences of interpretation by sending an email [email protected]

expect to release a new version of this dataset, including 2010 constitutions and the former Soviet

Republics, in summer 2011. A detailed description of coding procedures is outlined in: Courtney Jung,

Coding Manual: A Description of the Methods and Decisions Used to Build a Cross-National Dataset of

Economic and Social Rights in Developing Country Constitutions,November 9, 2010,

http://www.tiesr.org/Data/coding%20manual%20nov%209.pdf.
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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constitution alone.5 Nevertheless, constitutional texts offer a variety of insights regarding

the status of ESRs.

Even if constitutionally entrenched justiciability does not guarantee legal remedy, it does

normally establish where economic and social rights have formally co-equal status with

civil and political rights in the constitution. Since ESRs have long been considered

subordinate to civil and political rights, their comparative standing within a constitution

may tell us as much about their relative contemporary status as measuring their mere

presence or absence. Data regarding the texts of constitutions is a necessary, but not

sufficien

institutional factors on such outcomes.

1.1 CaseSelection and CharacteristicsThis dataset includes almost all MDCs and LDCs with written constitutions as defined byUnited Nations Human Development Project but it also includes some states located in

the global south with very high levels of GNP (e.g. Bahrain). It does not include most of

the small island nations (e.g. Nevis and St. Kitts), and it does not include most of the

former Soviet Republics. It also excludes several countries in which constitutions are

currently under revision.6 We expect to release an updated version of the dataset that

includes these cases in 2011.

82.0% of the constitutions in the dataset were written or significantly amended after

1974, and 73.0% of them after 1989. They are new constitutions that represent

contemporary norms of constitution-drafting. They may also be said to reflectcontemporary beliefs about what belongs in constitutions, and the mechanisms (or lack

thereof) necessary for their protection. Whether the beliefs they reflect are domestic,

those of an international community of experts, those of international financial

institutions, or those of more powerful states, is an important question that could be

analyzed in light of the dataset.

transitions.7 Like third wave transitions, third wave constitutions

primarily at uncovering and analyzing such traits and patterns.

5See, e.g. Charles R. Epp, TheRightsRevolution: Lawyers,Activists,and SupremeCourtsin ComparativePerspective(Chicago: University of Chicago Press, 1998); Gerald N. Rosenberg, TheHollow Hope: CanCourtsBr ing AboutSocial Change?, 2nd ed. (Chicago: University of Chicago Press, 2008).6A complete listing of countries and regional categorizations is included in section 8.1.7Samuel Huntington, TheThird Wave: Democratization in theLateTwentieth Century(Norman, OK:University of Oklahoma, 1991).


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1.2 Coding and ClassificationThe survey instrument

8used to collect the TIESR dataset was adapted from the template

code the constitutions of the countries of the world.9Relative to the CCP, the aims of the

TIESR project are quite limited; it codes only ESRs, in extant constitutions, in developing

countries. It is more expansive, however, in that it also attempts to ascertain the

constitutional status of such rightsas justiciable or aspirational.10

Two questions in the survey instrument ask researchers to identify the type of protection

covering ESRs as a discrete category of rights:

i. Are ESRs included as justiciable fundamental rights?ii. Are ESRs included as directive principles of state policy?11

We define justiciability as a condition under which particular rights are enforceablethrough the domestic court system and subject to legal remedy. Courtis defines

complaint before an impartial body, and request adequate remedies or redress if a

12

Mapulanga-Hulston notes that the key factors in

determination in judicial proceedings, whether it vests an enforceable right in the

individual, and whether it lends itself to sufficiently specific obligations on the part of

13

These specifications expand the definition of justiciability used in this

investigation.

Although justiciability depends in part on factors beyond the constitution alone,14

constitutions nevertheless enshrine different rights differently, often explicitly as

fundamental, justiciable, aspirational, or directive. The researchers engaged in the

8Jung, Coding Manual: A Description of the Methods and Decisions Used to Build a Cross-National

Dataset of Economic and Social Rights in Developing Country Constitutions.9Zachary Elkins, Tom Ginsburg, and James Melton, TheComparativeConstitutionsProject: A Cross-National Historical DatasetofWritten Constitutions, Survey Instrument, July 22, 2008,http://www.comparativeconstitutionsproject.org/files/surveyinstrument.pdf.10See also, David S. Law and Mila Versteeg, The Evolution and Ideology of Global Constitutionalism,

California Law Review99 (2011), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1643628.11 speaking, synonymous in all cases, it has not been possible to identify reliable differences in the way they

are used across jurisdictions.12Christian Courtis, The Right to Food as a Justiciable Right: Challenges and Strategies,in Max PlanckYearbookofUnited NationsLaw, ed. Armin von Bogdandy and Rdiger Wolfrum, vol. 11, 2007, 318.13Jackbeth K Mapulanga-Hulston, Examining the Justiciability of Economic, Social and Cultural Rights,

International Journal ofHuman Rights6, no. 4 (2002): 36.14See, e.g. Rosenberg, TheHollow Hope: Can CourtsBr ing AboutSocial C hange?; Epp, TheRightsRevolution: Lawyers,Activists,and SupremeCourtsin ComparativePerspective.


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collection of the TIESR data were concerned with each of these factors when determining

whether ESRs were justiciable in a given constitution. In particular, they were concerned

with three primary elements:

i. The Review Mechanism: while Mapulanga-Hulston is careful to

15

noting that the reviewmechanism need not be judicia l, ESRs were coded as justiciable onlywhen a constitution included a mechanism for judicial review.

Constitutions that enshrine justiciable ESRs usually have provisions forpeople to make claims in court to demand the review of alleged human

rights violations.

ii. The Standing of Individuals in the Review Process: many constitutionsstate, implicitly or explicitly, that individuals have the power to initiate

judicial review. This indicates the presence of justiciable rights. Where the

standing of individuals in the review process was unclear, or did not exist,

iii. The Language and Context of the Relevant Clauses: researchers tried todetermine what kind of entitlements and obligations the constitutionconferred on the people and the state in the realm of ESR based on what

section of the constitution the right was found in and how it was described.

Researchers deliberated at length over the significance of such differencesin language, especially with respect to obligations of the state versus rights

of the people.

These questions attempt to simplify the process of identifying whether ESRs, as a general

category of rights, are justiciable or aspirational. However, different rights are oftenprotected differently. Moreover, although ESRs are often treated in the literature as a

discrete category of rights, constitutions do not always enshrine ESRs separately from

other constitutional rights such as civil and political rights. Nor do they always offer the

same protection to each right. Each right was therefore analyzed separately, and coded

according to the trichotomous categorization outlined below.16

15Mapulanga-Hulston, Examining the Justiciability of Economic, Social and Cultural Rights,36-7.16

Constitutional clauses regarding expropriation (EXPR) and free markets (FMKT) were also coded in thedataset. However, both of these variables were coded dichotomously, as either absent or present. EXPR

was not included in the current analysis as it was deemed to be a guarantee accruing to the state rather than

accruing to individuals and as such did not fit with the general theme of the analysis which relates to rights

accruing to individuals in national constitutions. Similarly, it was felt that FMKT did not represent a

specific right accruing to individuals, but rather described a particular form of economic organization and

as such also did not fit with the focus of the current analysis. Further details regarding the coding criteria

can be found in the survey instrument. (Jung, Coding Manual: A Description of the Methods and

Decisions Used to Build a Cross-National Dataset of Economic and Social Rights in Developing Country

Constitutions.).


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Coding Values

Value Label Criteria

2

The government can be taken to court for failing to guarantee theeconomic and social rights promised in the constitution.

Citizens have legal recourse to ensure the fulfillment of theirconstitutional rights; usually a mechanism for judicial review enshrinedin the constitution.

1

Enumeration of constitutional rights intended to guide state policyand/or express ideals, but they are not binding. Directs government to

take social welfare into account when making policy decisions, but

creates no obligation to do so.

Citizens do not have legal recourse to ensure the fulfillment of theirconstitutional rights.

ESRs are not considered fundamental rights.0

The item is not mentioned in the constitution, either as a justiciable oraspirational right, or as a directive principle.

1.3 Regional Disaggregation and ComparabilityIn an attempt to identify patterns of internal variation within the data, we disaggregated

our universe of cases into five regional categories: Latin America (LAM), Sub-Saharan

Africa (SSAF), East-Central Europe (ECE), Arab States (AS), and Asia (A). Our goal was

to find out if there were identifiable regional patterns of ESR incorporation or, put

another way, if regional proximity accounted for a significant proportion of the variation

in ESR incorporation into constitutions.

As could possibly have been expected, some of these regions are very coherent and

demo

and AS); while others might be better disaggregated into two regions (A); and SSAF

exhibits almost as much internal variation as the dataset as a whole.17

The Arab States includes twenty-one constitutions. Most of them are new, and most

include Sharia law.

Fourteen Arab State constitutions (66.6%) have been adopted orsignificantly amended since 1974, thirteen of those (61.9%) since 1989.

All of the countries in this region except Turkey employ some form of common law.

18

17Within Asia, the differences between South and East Asia were occasionally marked, but these two

potential regions were aggregated because each alone included insufficient cases to allow for statistical

analysis.18For present purpose an autonomous legal system which is of a religious

nature and predominantly based on the Koran. In a number of countries of Muslim tradition, it tends to be

limited to the laws relating to personal status, although personal s


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Asia includes twenty-

e range of legal traditions.

Thirteen Asian constitutions (54.1%) were adopted after 1974, ten of those(41.6%) since 1989.

19legal or constitutional tradition,20a number of countries inSoutheast Asia, including Bangladesh, Sri Lanka, Nepal, and Pakistan,

commitment to democracy and norms of equality and non-

through the constitutional entrenchment of ESRs.21

those East Asian countries with new constitutions have enshrined ESRs.

22

East-Central Europeincludes eleven constitutions. Almost all of them are new, written

in the context of a transition from communism.

With the exception of Hungary (1949), all of the ECE constitutions werewritten within a few years of each other, in the context of post-1989

democratic transitions.

There appears to be a common, though far from uniform, constitutionalapproach and model of ESR incorporation, influenced on the one hand bycommunist era ideals about the social welfare responsibilities of states, and

on the other by a commitment to free-market reform.23

The constitution of Bosnia-Herzegovina, written in 1995, is the consistentoutlier in this group, with almost no ESRs.

The Serbian constitution of 2006, on the other hand, includes a wide rangeof justiciable economic and social rights.

(Louis Perret et al., World Legal Systems,JuriGlobeResearch Group, 2008,http://www.juriglobe.ca/eng/index.php.)19Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courtsin Asian Cases(New York:Cambridge University Press, 2003), 11-15.20

domination, and Islam have played important roles in differentially shaping the development of national

legal systems in Asia, highlighting at leas -

Germanic law; and, socialist law. (Jean-Pierre Cabestan, Constitutionalism and Western Legal Traditions

in Human Rights in Asian Legal Systems: With a Special Focus on Chinese Legal Systems,in OneCountry,Two Systems,ThreeLegal Orders- PerspectivesofEvolution, ed. Jorge Costa Oliveira and PauloCardinal (Berlin, Heidelberg: Springer Berlin Heidelberg, 2009),

http://www.springerlink.com/content/n5x006051x71m513/.).21Iain Byrne and Sara Hossain, South Asia: Economic and Social Rights Case Law of Bangladesh, Nepal,

Pakistan, and Sri Lanka,in Social RightsJurisprudence: Emerging Trendsin International andComparativeLaw, ed. Malcolm Langford (Cambridge: Cambridge University Press, 2008), 125-26.22Peter L. Berger, An East Asian Development Model?,in In Search ofan EastAsian DevelopmentModel, ed. Peter L. Berger and H. H. Michael Hsiao (New Brunswick, N.J.: Transaction Books, 1988), 3-23.23Wojciech Sadurski, PostcommunistC onstitutional Courtsin Search ofPolitical Legitimacy, EUIWorking Paper; LAW (Florence: European University Institute, 2001), 40,

http://128.252.251.212/harris/conferences/constitutionalconf/Constitutional_Courts_Legitimacy.pdf.


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Latin Amer icaincludes twenty-two constitutions. Almost all of them are new, and Latin

America has a common legal and constitutional tradition.

Twenty of the Latin American constitutions (90.9%) have beenpromulgated or significantly amended since 1989.

The Latin American region has a common constitutional and human rightstradition reaching back long before the recent wave of constitution-making in particular with respect to ESRs and the provision for

amparo.24

Twenty of the Latin American legal systems are civil law; Belize iscommon law; and Guyana is mixed civil and common law.

25

Sub-Saharan Africa includes forty-four constitutions. Almost all of the African

constitutions are new, but SSAF has no common legal or constitutional tradition.

Forty-one of the Sub-Saharan African constitutions (93.1%) have beenwritten or substantially amended since 1974, mostly in the context of

democratic transition.

SSAF has no common legal or constitutional tradition, and has a widerange of colonial legacies.

There is no discernible regional pattern with regard to ESR incorporation.

24Paolo G. Carozza, From Conquest to Constitutions: Retrieving a Latin American Tradition of the Idea of

Human Rights25 (2003): 281-313.; Allan R. Brewer-Carias, Constitutional Protection ofHuman Rightsin Latin America: A ComparativeStudy ofAmparo Proceedings(Cambridge: Cambridge University Press,2009).25Perret et al., World Legal Systems.


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2 TheF requency and Distr ibution of ESRs

In general, ESRs are widely present in developing country constitutions. Nevertheless,

there is significant variation in the relative prevalence of particular rights. Some are quite

commonly enshrined in such constitutions, and others are quite unusual. The most

common ESRs are:

1. Property (95.9%)2. Education (87.7%)3. Health (80.3%)

4. Social Security (77.9%)5. Trade Union (77.9%)6. Child Protection (74.6%)

The least common ESRs are:

1. Healthy Work Environment (41.8%)2. Housing (40.2%)3. Food and Water (24.6%)

4. Land (23.8%)5. Development (9.1%)

0

10

20

30

40

50

60

70

80

90

100

PresenceofJusticiableand Aspirational ESRs(%)

Justiciable Aspirational


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rights, it is usually justiciable. Nevertheless, if the purpose of this research is to analyze

the constitutionalization of ESRs in the context of neoliberal reform, it is clearly

instructive to compare the relative prevalence and status of PROP with that of (other)

ESRs. Also, if even some analysts now insist that a right to property is an ESR, it is

useful to be able to say something about the right to property in developing country

constitutions.

The right to property is present in 95.9% of all developing country constitutions,

justiciable in 59.0% and aspirational in 36.9%. In both LAM and SSAF it is present in all

constitutions, and it is present in at least 90.0% of constitutions in the other three regions.

The right is most commonly justiciable in LAM (81.8%) where it is aspirational in

Colombia, Cuba, the Dominican Republic and Haiti and justiciable in all other

constitutions in the region. In SSAF the right is justiciable in nearly three-quarters of

constitutions and aspirational in the remaining quarter. In ECE, it is absent only in

Slovenia, aspirational in Bosnia and Herzegovina, Bulgaria, and Croatia, and justiciable

in the rest. With the exception of Singapore and Sri Lanka, which do not enshrine a right

to property, constitutions in Asia are roughly evenly divided between justiciable (45.8%)

and aspirational (41.7%). As the only region in which the right is more likely to be

aspirational than justiciable, the Arab States is a notable outlier. In this region the right is

absent in Syria, justiciable in Djibouti, Iran, Sudan, and Turkey, and aspirational in the

remaining 76.2%.

2.2 EconomicRightsThe diverse labels and definitions assigned to the categories of rights with which we are

presently concerned provides no small room for terminological confusion. Cognizant ofthe fa

the same selection of rights, and that

number of different groupings of rights,27

we have opted for what seems to be a relatively

intuitive distinction between economic rights on the one hand and social rights on the

other. For the purposes of the present analysis we have distinguished between economic

those rights, such as the right to strike, to a fair wage, or to a healthy work environment,

that accrue to individuals based on their status as workers, and persist only so long as

tect social well-being,

beyond the workplace, and are accorded to individuals on the basis of citizenship or legal

immigrant status rather than employment.

In general, constitutions in LAM and ECE tend to have a relatively high incidence of

economic rights, the Arab States and Asia have a low incidence, and SSAF is in between.

27Grainne de Burca, The Future of Social Rights Protection in Europe,in Social RightsIn Europe, ed.Grainne de Burca and Bruno de Witte (Oxford, UK: Oxford University Press, 2005), 4.


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Economic rights are marginally more common in Asia than they are in the Arab States,

although this pattern is reversed with respect to TRDU and STRK, which are more

prevalent in the Arab States than in Asia.

LAM constitutions have the highest incidence of justiciable economic rights, followed by

ECE. Justiciable economic rights are less common in SSAF, and rare in Asia and the ArabStates.

2.2.1 TheRight to a Fair Wage

Constitutions may contain various wage-related guarantees, including rights to a

mmensurate with skill

considered reflective

found very commonly in constitutions, was not coded as a right to a fair wage, because it

seemed to more accurately reflect a commitment to equality or non-discrimination, in

particular as between different population groups such as men and women. Coding forthis right was contingent on a clear reference to the notion that people have the right to

payment that is just or fair based on the services rendered. In the developing world, the

right to a fair wage is present in half of all constitutions (49.2%) and is identified as

justiciable in just over a quarter of all constitutions (26.2%).

As with economic rights more generally, Latin America and East-Central Europe have a

relatively higher incidence of the right to a fair wage than other regions. In LAM, the

right is absent only in Belize and the Dominican Republic. In ECE, it is absent in

Albania, Bosnia Herzegovina, and Slovenia. Also in line with the general trend, while the

relative proportion of constitutions containing the right in LAM and ECE are comparable(90.9% and 72.7% respectively), in ECE the right is nearly twice as likely to be

aspirational while in LAM the right is four times more likely to be justiciable.

In the Arab states, the right to a fair wage is justiciable in Turkey and aspirational in

Egypt, Jordan, Oman, and Syria. In Asia it is absent in the majority of cases (70.8%) and

aspirational in Bangladesh, Bhutan, China, India, Indonesia, North Korea, and Thailand.

0

20

40

60

80

100

Arab States Asia Eastern &Central Europe

Latin America Sub-SaharanAfrica

%Aspirational

Justiciable


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There is no instance of a justiciable right to fair wage in Asia. As with most other

economic rights, SSAF contains a lower proportion of the right than ECE and LAM but a

greater proportion than Asia and the Arab States. There is also substantial internal

variation in the region.

2.2.2 TheRight to Form or Join a TradeUnion

The right to form or join a trade union indicates that workers have the right to organize

collectively to bargain with management for their rights as workers. In order to be

positively coded, a constitution must explicitly state a right to form or join a trade union,

of workers, which were generally treated as equivalent to trade unions.

The right to join a union is one of the most commonly enshrined rights in developing

country constitutions. Constitutions sometimes include TRDU among economic and

alongside, or as an extension of, the civil right to freedom of association. Like mostESRs, TRDU is most common in LAM (95.5%) and ECE (90.9%). In LAM it is absent

only in Cuba, and in ECE only in Bosnia Herzegovina. However, as with the right to

strike, this right is more prevalent in the Arab States than in Asia, a reversal of the general

pattern with respect to economic rights. However, when present, the right is much more

likely to be justiciable in Asia; among the eleven constitutions containing the right, it is

aspirational only in South Korea. SSAF also exhibits a higher than normal incidence of

both this right and the right to strike. It is absent only in the Ivory Coast, Equatorial

Guinea, Eritrea, and Tanzania.

0

20

40

60

80

100



%Aspirational

Justiciable


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2.2.3 TheRight to Str ike

The right to strike is also commonly expressed as a right to withhold labor. A right to

strike was often limited with respect to particular occupations or sectors. In cases with

broad limits a note was made, but the right was still coded in line with the trichotomous

criteria employed throughout.

Proportionately, the right to strike is most common in ECE, absent only in Bosnia

Herzegovina. When present, it is evenly distributed between aspirational and justiciable.

The right to strike is most likely to be justiciable in LAM: it is absent in Belize, Cuba,

and Guyana; aspirational in Colombia, the Dominican Republic, Haiti, and Mexico; and

justiciable in the other fifteen constitutions.

Despite a relatively high incidence of the justiciable right to form or join a trade union,

the right to strike is uncommon in Asia. In that region it is justiciable in Cambodia, East

Timor, and the Philippines, aspirational in South Korea, and absent in the other twenty

constitutions (83.3%). In the Arab States the incidence of the right to strike is also notably

lower than the right to form or join a trade union. However, unlike in Asia where there is

a notable difference in the balance of aspirational and justiciable variants of the rights to

join a union and to strike in addition to the variation in their presence or absence, in the

Arab States the justiciable-aspirational balance is roughly the same for TRDU and STRK.

It is possible that some constitutions treat a right to strike as implicit in a right to form or

join a trade union. Interestingly, the constitutions of the Ivory Coast, Equatorial Guinea,

and Mauritania all contain aspirational rights to strike but do not contain the right to form

a union. This combination does not occur elsewhere.

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2.2.4 TheRight to Rest or Leisure

A right to rest or leisure is indicated by any language that explicitly protects against over-

work, or entitles workers to some sort of reprieve from work such as vacation,

consecutive or periodic limitations on working hours, overtime bonuses, or leaves with

pay. Although constitutions sometimes expressed a commitment to ensuring that the

elderly or sick have a right to rest, we recognized only a right to rest with respect to

workers.

The right to leisure is most common in LAM, absent only in Belize, Bolivia, Dominican

Republic, and

ECE, where present, the right is somewhat more likely to be justiciable than aspirational.

In Asia, the right is present in ten constitutions (41.7%), but is justiciable in only two

(8.3%): East Timor and Mongolia. In SSAF, the right to leisure is less frequent than it is

in Asia, but more likely to be justiciable. The right is present in one quarter of the Arab

States, justiciable in Iran and Turkey and aspirational in Algeria, Jordan, and Syria.

2.2.5 TheRight to Healthy Work ing Conditions

A constitution was coded positively if it contained language explicitly articulating the

right of workers to a safe or healthy work environment.

This right is the least common economic right and its regional distribution is roughly

similar to overall economic rights trends. In LAM, the right is present in just under two-

0

20

40

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80

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%Aspirational

Justiciable

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thirds of constitutions. When present it is justiciable in all but Belize, Cuba, and Mexico.

The right is equally prevalent in ECE, but much more likely to be aspirational than

justiciable. Although much less frequent, Asia and SSAF also exhibit roughly similar

overall incidences of the right, but the justiciable/aspirational proportions are inverted

with nearly twice as many justiciable incidences in SSAF, and twice as many aspirational

in Asia. The right is only present in three Arab States: Algeria, Jordan, and Turkey, and it

is justiciable only in Turkey.

2.2.6 TheR ight to Social Security Related to Employment

Social security related to employment covers a wide range of benefits accruing to

workers alone, including maternity leave, sick leave, and employer-funded pension. A

positive coding required language that clearly indicated a distinction, either in benefit

level or eligibi

and for social security contingent on employment (past or present). In constitutions where

a right to assistance in the case of illness, unemployment, maternity leave, or similar wasarticulated, it was understood as providing a right to social security related to

employment. We did not take into account the level of protection or sufficiency of the

benefits provided. It should also be noted that the relatively high frequency of this right

may be due to the fact that one of three or more specific entitlements could be counted as

an incidence of this right.

This right is extremely common in both ECE, where it is absent in only Bosnia

Herzegovina, and LAM, where only Bolivia does not entrench it. Among economic

rights, only the right to join a trade union exhibits a comparable level of frequency in the

Arab States, in which it is slightly less common than the right to join a trade union. Theright is quite common in Asia, occurring in two-thirds of all constitutions. Interestingly,

while a few countries contain an aspirational right to employment-contingent social

security without also entrenching a right to join a union, only Iran includes a justiciable

right to employment-contingent social security with no right to join a union. Contrary to

the regional trend in economic rights, both the justiciable and aspirational variant of the

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right are unusual in SSAF where it is justiciable in only nine of forty-four countries and

aspirational in a further five.

2.3 Social RightsSocial rights are clearly divided into two types on the basis of their frequency. The more

(EDUC), healthcare (HLTH), non-employment contingent social security (SSEC, and

-

rights to access to land (LAND), to housing (HOUS), to food and water (FOWA),

development (DEVT), to a healthy environment (HENV), and to environmental

protection (ENVP).

Each of the standard social rights (SSRs) occurs in between 74.6% and 87.7% of cases

and 63.1% of constitutions in the dataset contain all four SSRs. These rights are most

common in ECE, but are more frequently justiciable in LAM, with relatively high

proportions in all regions. They occur the least frequently in the Arab States where the

average constitution contains 2.7 standard social rights, and five of the twenty-one

constitutions (23.8%) contain none. EDUC is present in 100.0% of cases in both ECE and

LAM.

Non-standard social rights (NSRs) exhibit greater regional variation than standard social

rights. Overall, ninety-six constitutions in the dataset (78.7%) contain at least one NSR,

but only two constitutions contain all six, Nicaragua and Ethiopia, and less than half

contain more than two. In terms of regional variation, there is a substantially higher

incidence of non-standard social rights in LAM, where the median constitution containsfour NSRs, than elsewhere particularly the Arab States, where the median constitution

contains no NSRs and the average constitution 0.9.

2.3.1 The(Genera l) Right to Social Security

assistance for old-age, welfare, long-term disability, and other similar entitlements, so

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long as these were not contingent on employment status. Like SSEM, SSEC may be

common because this category includes four or more specific entitlements.

Along with the rights to child protection (74.6%), healthcare (80.3%), and education

(87.7%) the generalized right to social security (77.9%) is among the most common

social rights. This trend is evident in the relatively high incidence of these rights acrossall regions. The generalized right to social security is most prevalent in ECE, present in

all but Bosnia Herzegovina. In Asia it is present in all but Brunei, Laos, Malaysia, and

Singapore. The right is proportionately less common in LAM, absent in Argentina,

Belize, and Chile, but is more frequently justiciable than in the other regions. Greater

justiciability in LAM is a trend that applies to all four of the standard social rights. The

right is present in more than two-thirds of both the Arab States and SSAF, but is more

commonly justiciable in SSAF.

2.3.2 TheRight to Child Protection

Children may be protected with respect to civil rights or economic and social rights. We

coded positively only when constitutions specifically identified a commitment to (some

of) the economic and social rights of children. Which specific economic and social rights

articulated

on other contextual cues, such as where in the constitution they appeared. In

constitutions that did not guarantee economic and social rights for children, but did

mention that all children had equal rights regardless of their filiation (whether they were

born in or out of wedlock), the right was coded as absent.

As with the other standard social rights, the incidence of this type of right is high across

all regions. It is absent in only Bosnia Herzegovina in ECE, and Argentina, Belize, Chile,

and the Dominican Republic in LAM. In LAM, however, it is justiciable in all other

constitutions except those of Cuba, Guyana, and Haiti where it is aspirational. It is

present in more than three-quarters of constitutions in SSAF (77.3%) and more than two-

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thirds in Asia (70.8%), but notably less so in the Arab States, where it occurs the least

-one constitutions. This is

also the lowest incidence of any of the four standard social rights in any of the regions.

2.3.3 TheRight to Health Care

The right to health care, health, health protection, and medical services were considered

synonyms. Constitutions were coded positively if they identified the provision of

healthcare as a duty of the state, outlined procedures for the state to care for the health of

the population, or included a requirement or responsibility to undertake policies aimed at

providing healthcare. As with education, the right to equal access was not considered to

Proportionally, the right to health is equally prevalent in ECE, absent in Bosnia and

Herzegovina, and LAM, absent in Argentina and Costa Rica. In line with the trend forstandard social rights, it is slightly more likely to be justiciable in LAM. The right is

nearly as common in Asia as it is in ECE and LAM, present in twenty of twenty-four

cases, absent only in Brunei, Malaysia, Singapore, and Sri Lanka. It is also present in

three-quarters of cases in SSAF and nearly so in Asia. However, the Arab States, Asia,

and SSAF, all exhibit relatively low levels of justiciability with regard to this right. In the

Arab States it is justiciable only in Iran, Sudan, and Turkey.

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2.3.4 TheR ight to Accessto Land

Sometimes particular groups (e.g. farmers, indigenous people) were guaranteed access to

land, but in most cases in which land was mentioned, the constitution made provisions for

increase access to land for its citizens, the case was coded positively for PROP but not for

LAND. This right was understood to imply that access to land requires some positive

action on the part of the state, beyond the (negative) protection for private property.

Within LAM the right to land is present in fifteen of twenty-two constitutions, and

justiciable in ten of those. In LAM, constitutions most commonly mention a right to land

in connection with the rights of indigenous peoples. Outside of LAM, this right is quite

rare. It is not present at all in ECE and only present in the Arab States in Bahrain

(aspirationally) and Turkey (justiciably). In SSAF, the right is present in six of forty-four

constitutions, aspirational in Lesotho, Mozambique, and Swaziland, and justiciable inEthiopia, South Africa, and Zimbabwe. Proportionately, the right is more common in Asia

(25.0%) where it is aspirationally present in Afghanistan, Nepal, South Korea, Taiwan,

and Thailand, and justiciable in the Philippines.

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2.3.5 TheRight to Housing

This right was commonly articulated bot

provide adequate housing, or to undertake policies aimed at providing adequate housing.

In cases where the constitution only provided the right to a subset of the population (e.g.

women or workers) the right was coded positively, but the restriction was noted.

As with other non-standard social rights, the right to housing is common only in LAM

(81.8%), where it is also most likely to be justiciable (59.1%). Only Belize, Chile, El

Salvador, and Peru do not include a right to housing. Outside LAM, the right is more

common than any other non-standard social rights, excepting the two rights relating to the

environment (HENV and ENVP). In the Arab States it is justiciable in Iran and Turkey; in

Asia it is justiciable in East Timor and Philippines; in ECE it is justiciable in Poland; and

in SSAF it is justiciable in Cape Verde, the Democratic Republic of the Congo, Malawi,

Sao Tome and Principe, Seychelles, and South Africa. It is present in some form in morethan two-fifths (41.7%) of Asia.

2.3.6 TheRight to Food and Water

Constitutions that identified the provision or increase of access to food and/or water as a

duty of the state, or simply enshrined a right to food and/or water, were considered to

0

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Justiciable

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Like the right to access land, this basic subsistence right is fairly commonly enshrined

only in LAM where it is present in 63.6% of constitutions, justiciable in nearly half of all

constitutions, and aspirational in an additional four: Colombia, Cuba, the Dominican

Republic, and Haiti. This right is not found in any ECE constitution. In the Arab States it

is present only in Iran, where it is justiciable. In SSAF, it is present in 20.5% of

constitutions, justiciable in the Democratic Republic of the Congo, Malawi, and South

Africa, and aspirational in Ethiopia, Namibia, Nigeria, the Gambia, Uganda, and Zambia.

In Asia, it is present in 25.0% of constitutions, justiciable in Nepal and aspirational in

Bangladesh, India, North Korea, Pakistan, and Sri Lanka.

2.3.7 TheRight to Education

Constitutions include both positive and negative rights to education. The former implies

a state obligation to provide education, whereas the latter allows citizens the freedom to

pursue the education of their choice. Our dataset only includes education when it is

framed as a positive right.

The right to education is present in every constitution in LAM and ECE. In Asia, the right

to education is absent in only the two constitutions that fail to include any ESRs at all:

Singapore and Malaysia. In SSAF and the Arab States, the right to education is less

ubiquitous. In SSAF it is absen

Rwanda, and Zimbabwe. Approximately one quarter of the Arab States do not enshrine a

right to education, including Djibouti, Lebanon, Mauritania, Morocco, and Tunisia. The

right to education is the third most commonly justiciable right (43.4%) after the right to

property (59.0%) and to form or join a trade union (54.9%).

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2.3.8 TheRight to Development .

The right to development is a notoriously vague right, with nearly boundless potential

content. Because of its ambiguous meaning and content, it was included only if the

Given how commonly this right is invoked at the international level, and in the discourseof global justice, it is interesting how infrequently it shows up in developing country

constitutions, even in those constitutions that have been written in the period since the

right to development has gained currency. The right is present in seven SSAF, two LAM,

one ECE, one Arab State, and one Asian constitutions. It is identified as justiciable only

in Peru, Nicaragua, Malawi, Ethiopia, and the Democratic Republic of the Congo.

2.3.9 TheRight to a H ealthy Environment

Constitutions often included references to hygiene, suitability for human life, and

freedom from contamination that are distinct from either the employment related right to

a healthy work environment or the more generalized duty of the state to protect the

environment.

In terms of general prevalence, the two environmental rights, HENV and ENVP, are most

similar to the economic rights (with the exception of TRDU). They are neither as

common as PROP, EDUC, TRDU, HLTH, and SSEC nor as rare as HOUS, LAND,

FOWA, and DEVT.

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HENV is proportionately more common in ECE than in LAM, present in all but Bosnia

Herzegovina. It is, however, far more commonly justiciable in LAM than elsewhere. This

right is absent in seven countries, aspirational in Colombia, and justiciable in all

remaining constitutions. The right is present in 59.5% of cases in SSAF and slightly more

likely to be justiciable than aspirational. In Asia, the right is present in 41.7% of

constitutions, but more than twice as likely to be aspirational. In the Arab States, it is

justiciable in Turkey, aspirational in Iraq and Sudan, and absent in all other countries.

Interestingly, despite the same proportion of Arab States containing the rights to healthy

working conditions and to a healthy environment, Turkey is the only country in which

both are entrenched. Both rights, as well as the duty of the state to protect the

environment, are justiciable in Turkey. The only other Arab State with a justiciable

environmental right is Egypt, which has a justiciable duty of the state to protect the

environment.

2.3.10 Duty of theStateto Protect theEnvironment

duty to protect the environment. An important distinction between the right to a healthy

environment and the duty of the state to protect the environment is that the former

latter is related more specifically to the natural environment. The right to a safe and

healthy environment might imply that the state has a duty to protect the environment, just

as a requirement of the state to protect the environment might imply direction to the state

to see that the right to a healthy environment is fulfilled.

The duty of the state to protect the environment is the most common environmental right

(63.1%) but the right to a healthy environment is more commonly justiciable at 29.5%, as

compared to 24.6% for the duty of the state to protect the environment and the right to a

healthy working environment. The greater frequency of this right as compared to other

environmental rights is reflected in four of the five regions, with only the ECE exhibiting

a lower incidence of this right than other environmental rights.

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In line with the general trend among non-standard social rights, the right is most common

(81.8%) and most commonly justiciable (59.1%) in LAM, absent only in Cuba, the

Dominican Republic, Mexico, and Uruguay. Of these countries, both the Dominican

Republic and Uruguay contain no environmental rights of the type considered here, while

Cuba contains only an aspirational right to a healthy working environment, and Mexico

contains an aspirational right to the same as well as a justiciable right to a healthy

environment. Outside of LAM, the right is markedly less likely to be justiciable at 9.5%

in the Arab States, 12.5% in Asia, 27.3% in ECE, and 20.5% in SSAF.

2.4 IC ESCR Status

International instruments to which a state is a signatory are another way economic and

social rights may be entrenched in domestic jurisdictions. In particular, this research was

concerned with the status of the ICESCR within constitutions and how such treaties,

whether named or not, are incorporated into constitutional law. The aim was to

determine, based on the constitution, if the country incorporated international or regional treaties, covenants or agreements into national law,

Constitutions often mention a commitment to the UDHR. Fewer constitutions mention

the ICESCR specifically, but it has been signed and ratified by a majority of countries.

Somewhat differently from the other rights discussed above, the covenant was considered

ve full legal status, either explicitly or

implicitly, and where constitutional rights were backed with judicial review. Where a

country had signed and ratified the ICESCR and adopted it into domestic law, but did not

protect constitutional rights with judicial review, where exceptions were made regardingthe status of human rights treaties, or where countries with a monist legal system had

signed, but not ratified the Covenant, the ICESCR was considered aspirational. Countries

countries that have not ratified and/or signed the ICESCR,

and countries in which the constitution made no mention of the status of treaties, were

coded as absent.

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The ICESCR has aspirational or justiciable force in 88.5% of the countries analyzed. In

some constitutions either the ICESCR in particular or international treaties and

conventions in general, have the status of, or are superior to, domestic law. In ECE the

ICESCR is justiciable in all but Bosnia Herzegovina and Croatia, both of which

incorporate the covenant in its justiciable form. In SSAF it is present in some form in all

but Botswana, Liberia, and Mozambique although justiciable in only 21.7% of

constitutions. Similarly, it is present in all but Haiti in LAM, although it significantly

more likely to be justiciable in the region (54.5%). Somewhat surprisingly considering

the otherwise relatively low incidence of ESRs, the Covenant is accorded some status in

81.0% of the Arab States, although it is only justiciable in Sudan and Turkey. The

Covenant is least commonly accorded standing in Asian constitutions, although it is still

present in 75.0% of cases. The Covenant is proportionately more likely to be justiciable

in Asia (16.7%) than in the Arab States (9.5%).


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3 Regional Treatment of RightsBy capturing not only the presence or absence of particular ESRs, but also their

justiciability, the TIESR dataset aims to provide a nuanced depiction of variation in

constitutional ESR guarantees. By aggregating the ESRs entrenched in specific

constitutions ESRs.

28 apparent: those that

that those

that 29

E RS SRs SSRs NSRsE Rs+SSRs

E Rs+SRs

Justiciable 50 33 42 34 44 36

Mixed 22 28 16 11 32 40

Aspirational 39 50 52 51 42 42

Total 111 111 110 96 118 118

Average 3.3 5.3 3.2 2.1 6.5 8.6

In the developing world, each of the three constitutional models make up approximately

one-

considered. In general, economic rights are more likely to be justiciable than aspirational,

while the reverse is true of social rights, albeit less so when only the standard social rights

are considered. Further, the four smaller groupings tend to be less mixed than the broader

combined categories. This may indicate that nevertheless, variation between economicand social rights also exists within constitutions. However, further analysis would be

required to reasonably assert that these observations are not simply a function of the

28The groupings employed in the present analysis and subsequently throughout this section of the report

are as follows: EconomicRights Social Rights ENVP. Standard SocialRights Non-Standard Social Rights FOWA; DEVT; HENV; ENVP.29In order to be considered a valid case for analysis, a constitution was required to contain at least one of

the component rights of the relevant rights group (ERs, SRs, SSRs, or NSRs). Therefore, the total number

of cases for each grouping is variable. For the combined categories (ERs + SSRs and ERs +SRs) a singleright in either of the groups was sufficient for the inclusion of a case. Somewhat problematically, this

introduces a bias toward the pure categories, as a single right will obviously lead to the classification as

hts

within a group increases, the degree of bias introduced should decrease. To assist in the interpretation of the

data the median number of rights enshrined within a constitution is included for each grouping. Moreover,

as discussed below, prevailing analyses tend to assume that the set of ESRs contained within a constitution

are uniformly justiciable or aspirational, the bias introduced works against our finding that internal

variation of ESR type occurs. Thus, while the observations may be overstating the prevalence of uniformity

of treatment, it is held that the presentation and discussion of this data is warranted.


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increased likelihood of non-uniformity resulting from an increased number of potential

rights.

3.1 TheArab States

The Arab States region includes a total of twenty-one constitutions with an average of 5.6

ESRs per constitution. PROP is enshrined in all but the Syrian constitution in the region.

Five constitutions contain justiciable rights: Turkey (14), Iran (8), Sudan (6), Djibouti (2),

and Egypt (2). The Turkish Constitution contains the greatest number of ESRs in the

region with fourteen, while the Lebanese Constitution contains the fewest with none.

Also of note are Bahrain, which contains ten ESRs, all of which are aspirational, and

Mauritania, which contains only the aspirational right to strike. Property rights are absent

in Syria, justiciable in Djibouti, Iran, the Sudan, and Turkey and aspirational in all other

countries in the region. The ICESCR is present in all but Oman, Saudi Arabia, and the

UAE, but is justiciable only in Sudan and Turkey.

The most frequently occurring rights in this region are EDUC (16), HLTH (15), SSEC

(14), and TRDU (13). The least frequent are DEVT (1), FOWA (1), LAND (2), HENV

(3), HENV (3), HOUS (4), STRK (5), and LEIS (5). This region does not contain a high

proportion of justiciable rights. The four occurrences of TRDU make it the most

frequently justiciable, followed by three each of SSEM, SSEC, CPRO, HLTH, and

EDUC. DEVT is not justiciable anywhere in the region, and FRWG, HWRK, LAND,

FOWA, and HENV are justiciable only in the Turkish Constitution.

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E Rs+SRs

Justiciable 4 2 3 3 4 3

Mixed 1 2 0 0 1 2

Aspirational 12 12 13 7 15 15Total 17 16 16 10 20 20

Average 2.0 3.6 2.7 0.9 4.7 5.6

In the Arab States, all but Egypt and Sudan (only when ERs + SRs are considered) are

models of the five regions. However, the relatively lower incidence of ESRs in this

prevalence of aspirational enshrinement of such rights as there are within the regions

teen constitutions

contain at least one economic right, and fifteen contain at least one standard social right,only nine contain at least one non-standard social right. The only country in the region

that does not enshrine any ESRs is Lebanon. The Lebanese constitution is also the oldest

in the region, enacted in 1926, well before any of the relevant international documents

existed.

3.2 Asia

The Asian region contains twenty-three constitutional cases with an average of 7.6 ESRs.

In terms of justiciable rights, the regional average is 2.6. East Timor, North Korea, the

Philippines, and South Korea contain the most rights with twelve each. Malaysia and

Singapore contain the fewest with none. East Timor also contains the greatest number of

justiciable ESRs (12), while Afghanistan, Bhutan, Brunei, China, Indonesia, Laos,

Malaysia, North Korea, Singapore, South Korea, and Vietnam have no justiciable rights.

0

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Property rights are present in all but Brunei, Singapore and Sri Lanka, and evenly split

between justiciable

constitutions, but is justiciable only in East Timor, Mongolia, Nepal, and Thailand.

The most commonly enshrined rights in the region are EDUC (21), SSEC (20), HLTH

(20), CPRO (17), and SSEM (16). The least common are DEVT (0), (STRK (4), LAND(6), FOWA (6), and FRWG (7). TRDU (10) is the most commonly justiciable. EDUC (9),

HLTH (7), SSEC (6), and CPRO (6) are the next most commonly justiciable. The least

frequently justiciable rights in the region are DEVT and FRWG which are never

justiciable, FOWA, justiciable only in Nepal, and LAND, justiciable only in the

Philippines.

F requency ofConstitutional Modelsin Asia


E Rs+SRs

Justiciable 6 3 6 2 5 3Mixed 5 7 4 3 8 10

Aspirational 8 11 11 14 8 8

Total 19 21 21 19 21 21

Average 2.4 5.2 3.3 2.0 5.6 7.6

In terms of consistent ESR treatment, Asia exhibits the highest proportion of mixed

constitutions in the five regions (ERs + SRs: 38.1%; ERs+SSRs: 47.6%). The region also

only East Timor, Japan, and Mongolia falling under that category, while 38.1% of the

constitutions in the region are aspirational. Brunei, Malaysia and Singapore are the onlycountries in the region whose constitutions fail to include even a single economic or

social right.


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Constitutions in ECE are evenly distributed between the three models and evidence a

high incidence of ESRs. Indeed, the median constitution in the region contains all six

economic rights. Ten of eleven constitutions contain at least one ER and all contain at

least one SR. As noted above, Bosnia and Herzegovina is the outlier in the region

containing only one SR, the aspirational right to education.

3.4 Latin America

The Latin American region contains twenty-two cases. The median constitution in this

region contains fourteen ESRs and the average is 13.0. ESRs in the region are also

predominantly justiciable, with the average constitution containing 9.7 justiciable rights

and the median 12.5 markedly higher than any other region. The Nicaraguan

Constitution contains seventeen ESRs, all of which are justiciable. This is both the

greatest number of ESRs and the greatest number of justiciable rights in the region and in

the dataset. Belize (6), Chile (8), and the Dominican Republic (9) are the only countrieswith fewer than ten enshrined rights. Property rights present in all constitutions in the

region, aspirational in Colombia, Cuba, the Dominican Republic, and Haiti, and

justiciable in the rest. The ICESCR is aspirationally enshrined in nine constitutions,

justiciably so in twelve, and absent in oneHaiti.

SSEM (21) in all but Bolivia, although it should be noted that the Bolivian Constitution

contains a justiciable right to social security more generally. FRWG (20) and HLTH (20)

regions is DEVT (2), present in Nicaragua and Peru and justiciable in both cases.HWRK (14), FOWA (14), LAND (15), and HENV (15) are the next least frequently

enshrined rights. TRDU (17), FRWG (16), STRK (15), CPRO (15), and EDUC (15) are

the most commonly justiciable rights, while DEVT (2), LAND (10), FOWA (10), and

HWRK (11) are the least.

0102030405060708090

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Frequency ofConstitutional Modelsin Latin America


E Rs+SRs

Justiciable 14 12 14 14 14 12

Mixed 4 5 2 2 5 7

Aspirational 4 5 6 6 3 3Total 22 22 22 22 22 22

Average 5.1 7.3 3.6 3.7 8.7 12.4

Constitutions in LAM exh

constitutions (ERs+SSRs: 63.6%; ERs+SRs: 54.5% ) and the lowest proportions of pure

the constitutions in the region enshrine a least one of each of the three primary rights

groupings (ERs, SSRs, and NSRs). LAM is the only region in which this occurs.

Although the median constitution includes one fewer economic right than that of the

ECE, it contains eight (as compared to six) social rights all four of the standard social

rights, and four of the possible six non-standard social rights.

3.5 Sub-Saharan Afr ica

Sub-Saharan Africa, with forty-four cases, is by far the largest region analyzed. The

average constitution contains 8.3 ESRs. In terms of justiciable rights, the average is 4.4.

Most SSAF constitutions contain three or fewer justiciable rights, or ten or more. The

Ugandan Constitution contains the most ESRs in the region with fifteen, while Botswana,

Kenya, Mauritius, and Tunisia, each with one, contain the fewest. The Democratic

Republic of the Congo contains the highest number of justiciable ESRs in the region with

fourteen and Angola, Cape Verde, Seychelles, and South Africa each contain thirteen. The

constitutions of tweleve countries in the region do not contain any justiciable ESRs.

Property rights are present in all SSAF countries, aspirational in twelve and justiciable in

0

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40

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thirty-two. The ICESCR is aspirational in thirty-one constitutions, justiciable in ten, and

absent (un-signed) in Botswana, Liberia, and Mozambique.

The most commonly found ESRs in SSAF are TRDU (40), EDUC (37), CPRO (34),

HLTH (33), SSEC (32), and STRK (29). The least common are LAND (6), DEVT (7),

FOWA (9). The most commonly justiciable are TRDU (30), CPRO (21), EDUC (20),

STRK (17) the least commonly justiciable are LAND, found in Ethiopia, South Africa,

and Zimbabwe, FOWA, found in the Democratic Republic of the Congo, Malawi and

South Africa, and DEVT, found in the Democratic Republic of the Congo, Ethiopia, and

Malawi.

Frequency ofConstitutional Modelsin Sub-Saharan Africa

E Rs SRs SSRs NSRsE Rs+SSRs

E Rs+SRs

Justiciable 22 12 13 11 17 15

Mixed 9 12 10 6 15 17Aspirational 12 17 17 18 12 12

Total 43 41 40 35 44 44

Average 3.1 5.1 3.1 2.0 6.2 8.3

The distribution of constitutions in SSAF is relatively even across the three models,

- contain at least one ESR, all but

Eritrea contain at least one economic right, and all but Botswana, Kenya, Mauritius, and

contain at least one social right.


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between HOUS and FOWA (.656); and weaker but still significant correlations between

LAND and HOUS (.517), and LAND and FOWA (.494). The quantitative analysis shows

that, along with DEVT, these rights are least likely to be enshrined in developing country

constitutions. The only region in which these three rights are generally present in

constitutions is Latin America (LAND 68.2%, HOUS 81.8%, FOWA 63.6%), although

43.5% of Asian constitutions and 29.8% of African constitutions also include a right to

housing. Rights to land and food and water are completely absent from the constitutions

of East Central Europe, and mostly absent in Asia and the Arab States.

We specula

education and healthcare. A right to land may be perceived as directly threatening to a

right to property, and all three rights, to land, housing, and food and water, may be

construed as properly provided through the market rather than an obligation of the state.33

re,

Healthy Work Environment, Social Security related to Employment, and Social Security.

This relationship is revealed by a moderately strong correlation between LEIS and

HWRK (.611), SSEM and SSEC (.567), LEIS and SSEC (.514), LEIS and SSEM (.513),

although the correlation is weaker between HWRK and SSEM (.458) and HWRK and

SSEC (.445).

Unsurprisingly, there is a statistically significant correlation between the right to strike

and the right to organize a trade union (.526). Although the data show that these two

rights mostly coexist in constitutions, in particular in Latin America and East-Central

Europe, there are a few instances of constitutions that include a right to strike in the

absence of a right to unionize. More common is the presence of TRDU and the absence

of STRK, especially in Asia. TRDU is present in 77.9% of developing country

constitutions, and justiciable in 54.9%, whereas STRK is present in 54.9% of

constitutions and justiciable in 34.4%.

1990); William Finnegan, The Economics of Empire: Notes on the Washington Consensus,Harper's306

(2003): 41-54.33Andras Sajo has described social rights as subsidies for the middle class, at least in Hungary (Andras

Sajo, Social Rights as Middle-Class Entitlements in Hungary: The Role of the Constitutional Court, in

Courtsand Social Transformation in New Democracies: an Institutional Voicefor thePoor?, ed. Roberto.Gargarella, Pilar. Domingo, and Theunis. Roux (Aldershot, England: Ashgate, 2006).). In a comparison of

economic and rights-based approaches to social rights, Varun Gauri notes that economists tend to view all

ESRs as subsidies. (Varun Gauri, Social Rights and Economics: Claims to Health Care and Education in

Developing Countries,World Development32, no. 3 (2004): 465477. the Washington Consensus suggests that most international policy-makers distinguish between different

types of government spending (Williamson, What Washington Means by Policy Reform.).


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We speculate that there are two possible reasons for the fact that the correlation is not

stronger between TRDU and STRK. First, although TRDU and STRK are separately

enshrined in the ICESCR, it is possible that some constitutions treat STRK as implicit in

TRDU. We think it more likely however, given that the right to strike is most absent in

Asia and the Arab States, that a right to strike is perceived as more threatening to

economic and/or political stability than a right to unionize, in particular in corporatist

states where unionization is often organized from the top-down by states themselves.34

This refinement in the categorization of rights reveals an interesting pattern in the relative

prevalence of economic rights and the standard social rights. Across the world, five of

the six economic rights identified in our database (all except TRDU) are less commonly

enshrined in constitutions than the four standard social rights (education, health, child

protection, and social security). The actual discrepancy between the two groups of rights

varies from region to region, with Asia showing the most marked bifurcation and Latin

America the least. Two rights we coded as social rights, Healthy Environment and

Environmental Protection, exhibit patterns much closer to the economic rights than to the

most commonly enshrined social rights.

This observation was initially masked by the fact that we included a very wide range of

social rights in our database, including four that are quite rarely enshrined in

constitutions: land, housing, food and water, and development. Since these rights are

mostly absent from all constitutions outside Latin America, they seemed to distort a

comparison of the relative frequency of economic versus social rights.

The fact that constitutions enshrine a certain subset of social rights more routinely than

economic rights is particularly interesting against the background of common

social rights. One reason

e non-interference. The protection

of positive rights is conversely said to require state interference and, indeed, state

funding. It is because economic and social rights supposedly require state interference

and funding that many legal scholars have argued that they should not be enshrined in

constitutions, are not justiciable, and should properly be protected through legislationrather than court decisions.

35

34Philippe Schmitter, Still the Century of Corporatism?,in TrendsTowardsCorporateIntermediation,ed. Philippe Schmitter and Gerhard Lehmbruch (London: Sage, 1979), 7-48.35Cass R. Sunstein, Against Positive Rights,EastEuropean Constitutional Review2, no. 1 (1993): 3537; Dennis M. Davis, The Case Against the Inclusion of Socio-Economic Demands in a Bill of Rights

Except as Directive Principles,South A frican Journal on Human Rights8 (1992): 475-490.


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Many scholars have challenged this bifurcation, arguing in particular that civil and

political rights are empty in the absence of protection for economic and social rights. The

two sets of rights, they argue, are indivisible and mutually constitutive, and not only that,

but they all depend for their protection on government spending and interference. There is

no bright line between first and second-generation rights, and the positive, negative

distinction is empty.36

We concur with this characterization of the relationship among rights. Mapping the

positive-negative distinction onto first and second-generation rights is neither accurate

nor analytically useful. Many civil and political rights are positive in the sense that they

require more than government non-interference for their protection including for

example the right to a fair trial, to police protection, and to property. Many economic

rights, including the right to a fair wage, leisure, a healthy work environment, and

employment benefits are similar in the sense that they require legislation and state

willingness to enforce the law. The economic rights to unionize and to strike, however,

are more like the civil rights to free association, freedom of religion, and free speech,

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